Older job applicants were dealt a blow last week when a divided United States appeals court decided the applicants of a certain age could not invoke a federal law against age bias in hiring practices they feel are discriminatory. In other words, existing employees can claim age discrimination if certain criteria are met (the employee is over the age of forty and the company employees more than 20 people), but job applicants cannot claim age discrimination if they are passed over for a job – even if they believe the decision was due to their age.
In an 8-4 decision, the U.S. Court of Appeals for the 7th Circuit in Chicago said the language in the Age Discrimination in Employment Act (ADEA) was quite clear in that Congress intended the law to protect current employees only not job applicants. The decision on January 23, 2019 reversed a ruling in April 2018 by a panel of the same Court.
The definition of the ADEA contradicts the ruling, however, because it includes employees and applicants in its very definition. According to the website employmentlawhandbook.com:
“The Age Discrimination in Employment Act applies to employers with 20 or more employees and protects employees and applicants who are 40 years of age or over from discrimination in the workplace because of their age.”
The language in the decision by the Court of Appeals in Chicago said that if an employee over the age of 40 asserts he was “replaced by or passed over for hire by a younger employee, the older employee must prove the younger employee was substantially younger”; however, the courts are not in consensus about how many years younger constitutes “substantially younger.”
According to the ADEA, the minimum number of years required by any court is three years. Employers, however, can avoid liability for age discrimination when they can establish a “bona fide occupational qualification” (BFOQ), which requires an employee to be younger than the employee claiming age discrimination.
For an employer to use the defense of a “bona fide occupational qualification,” it must prove that specific qualification is necessary for the business to be successful and that a definable group or class of employee (such as those over a certain age) would be unable to perform the job requirements safely and correctly. It must be proven that a certain type of worker is necessary for the job and that employees of a certain age would not be able to perform the job requirement successfully.
Examples of BFOQ’s that would apply to age include:
- Mandatory retirement ages for bus drivers and airplane pilots for safety reasons
- The use of models and actors for the purposes of authenticity or genuineness (For instance, a 60-year-old man would be excluded from being awarded parts for 20-year-old men in TV, movies, and commercials)
There are many other examples of BFOQ’s but these two clearly show how age does play a part in certain employment situations.
According to the Bureau of Labor Statistics, people aged 55 and older comprised 24% of the workforce in 2016, which was up quite a bit from 1996 in which those aged 55 and older comprised only 11.9% of the American workforce. Projections on future numbers indicate that those aged 55 and older may account for as much as 25% of the workforce by the year 2022.